Susan Resnick, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security<1>, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
07A20040 (E.E.O.C. Oct. 30, 2003)

07A20040

10-30-2003

Susan Resnick, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.


Susan Resnick v. Department of Homeland Security

07A20040

October 30, 2003

.

Susan Resnick,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security<1>,

Agency.

Appeal No. 07A20040

Agency No. 98-2105

Hearing No. 330-98-8181X

DECISION

In concert with its November 9, 2001 final order, the agency timely<2>

filed an appeal which the Commission accepts pursuant to 29 C.F.R. �

1614.405. On appeal, the agency requests that the Commission affirm

its rejection of an EEOC Administrative Judge's (AJ) finding that the

agency discriminated against complainant on the basis of reprisal (prior

protected activity under Title VII). The agency also requests that the

Commission affirm its rejection of the AJ's order to pay complainant

$50,000 in compensatory damages and $49,464.73 in attorney's fees and

costs. For the following reasons, the Commission MODIFIES the agency's

final order.

Complainant, an Intelligence Research Specialist, GS-0132-12, employed

at the agency's U.S. Customs Service, Houston, Texas facility, filed

a formal EEO complaint with the agency on February 6, 1998, alleging

that the agency had discriminated against her on the bases of age (45)

and reprisal for prior EEO activity when she was not selected for the

position of Intelligence Research Specialist, GS-0132-13, under vacancy

announcement number INVSC/97-088DES.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an AJ.

Following a hearing, on June 30, 2000, the AJ issued a decision finding no

discrimination based on age, but finding discrimination based on reprisal.

Further, on the basis of affidavits and medical records submitted by

complainant, in a revised decision issued September 28, 2001, the AJ

awarded complainant $50,000 in compensatory damages. In addition,

based on the submission of a fee petition by complainant's attorney,

the AJ awarded attorney's fees and costs in the amount of $49,464.73.

The agency issued a final order declining to fully implement the AJ's

decision. On appeal, the agency does not contest the AJ's finding of

reprisal discrimination. Rather, the agency argues that the AJ's awards

of both compensatory damages and attorney's fees and costs were excessive

in light of the circumstances of the case.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held, as are

findings of fact issued without a hearing. See 29 C.F.R. � 1614.405(a).

Non-Selection

On appeal, the agency has not contested the finding of reprisal

discrimination in connection with complainant's non-selection. The

Commission therefore limits its review to the propriety of the awards

of compensatory damages and attorney's fees and costs.

Compensatory Damages

The particulars of what relief may be awarded, and what proof is

necessary to obtain that relief, are set forth in detail in the

Commission's enforcement guidance Compensatory and Punitive Damages

Available Under Section 102 of the Civil Rights Act of 1991 (July 14,

1992) (Damages Guidance). Briefly stated, the complainant must submit

evidence to show that the agency's discriminatory conduct directly or

proximately caused the losses for which damages are sought. Id. at

11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal No. 01934157 (July

22, 1994). The amount awarded should reflect the extent to which the

agency's discriminatory action directly or proximately caused harm to

the complainant and the extent to which other factors may have played

a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary

damages should also reflect the nature and severity of the harm to

the complainant, and the duration or expected duration of the harm.

Id. at 14.

In Carle v. Dept. of the Navy, the Commission explained that �objective

evidence� of non-pecuniary damages could include a statement by the

complainant explaining how he or she was affected by the discrimination.

EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,

including family members, friends, and health care providers could

address the outward manifestations of the impact of the discrimination

on the complainant. Id. The complainant could also submit documentation

of medical or psychiatric treatment related to the effects of the

discrimination. Id. It is the complainant's burden to establish that

such a causal connection exists; it is not the agency's burden to disprove

it. See Damages Guidance, at 11-12, 14; Rivera, EEOC Appeal No. 01934157.

Evidence on compensatory damages was not taken at the hearing.<3> Rather,

post-hearing, the complainant submitted four affidavits (one executed

by herself, two by friends, and one by a co-worker), and miscellaneous

medical documents.<4>

Complainant states in her affidavit that she cried when she learned of her

non-selection. Complainant then details numerous allegedly discriminatory

events transpiring subsequent to the non-selection, which were not a part

of the complaint at bar. Complainant states variously that these other

events made her feel �worthless and stupid,� �worthless and sad,� �angry

and upset,� �angry and depressed,� or �angry and sickened.� Complainant

also states that she experienced sleeplessness and depression.

An affidavit provided by a friend of complainant, Witness A, describes

negative changes in complainant's personality, but neither mentions the

non-selection nor otherwise fixes a time-frame as to when these changes

were observed. Witness A does, however, reference an earlier complaint

of religious discrimination filed by complainant, which is not a part

of the case at bar.

An affidavit provided by complainant's coworker, Witness B, does

not address complainant's mental or physical status. Rather, it

addresses numerous unadjudicated work-related matters arising after

the non-selection.

A second friend of complainant, Witness C, stated that after complainant

returned from an assignment in Europe to the Houston office, where

the non-selection later occurred, complainant began to report that she

was being mistreated and unjustifiably criticized by her supervisors

and that she was not selected for a promotion. Witness C opined that

complainant had been subjected to �unprofessional harassment mistreatment

and intimidation� over a period of time. Witness C stated that where

complainant had been �happy, engaging, and displayed a wonderful sense

of humor,� her mood and self-esteem diminished, and she became moody and

inward-directed, and cried on occasion. Witness C noted that complainant

began to experience weight-gain, acne, and sleeplessness, and further

described complainant as having feelings of helplessness, hopelessness,

and depression.

As noted by the AJ, complainant's evidence also shows many contributing

factors beyond the non-selection, �and there is little evidence to

distinguish the direct or proximate cause of [her] injuries from the

myriad of other problems on her job ....� The burden is on complainant

to show that she sustained compensable injury causally connected to

her non-selection. See, e.g., Wallis v. United States Postal Service,

EEOC Appeal No. 01950510 (November 13, 1995). Complainant's evidence,

while sufficient to establish injury, further establishes that for the

most part complainant's injury is attributable to events other than the

non-selection at issue, that were not adjudicated in the complaint at bar,

and therefore are not compensable by the Commission in this case. Id.

The Commission notes that in assessing an award of $50,000 in

non-pecuniary<5> damages, the AJ relied upon the Commission's

decisions in Ward-Jenkins v. Department of the Interior, EEOC Appeal

No. 01961483 (March 4, 1999) and Wilson v. Department of the Air Force,

EEOC Appeal No. 01955269 (July 29, 1997), req. to reopen den., EEOC

Request No. 05970991 (March 18, 1999). In Ward-Jenkins, the Commission

awarded $50,000 in non-pecuniary damages where lay and expert testimony

established that the agency's discriminatory actions (involving an

involuntary detail and cross-country reassignment) directly caused the

complainant to experience Major Depression and Adjustment Disorder with

Anxiety requiring ongoing psychiatric treatment, and that the complainant

experienced, among other symptoms, suicidal ideation, insomnia,

nightmares, and a 100 pound weight gain. In Wilson, the Commission

affirmed an agency award of $50,000 in non-pecuniary damages where

lay and expert testimony established that the agency's discriminatory

actions (involving sexual harassment) directly caused the complainant

Major Depression and severely impaired functioning, to the extent that

complainant was unable to leave her home and consequently could not work,

and was unable to care for herself and her family.

Applying the substantial evidence standard to assess the extent of

complainant's damages directly related to the proven discriminatory

action, the Commission finds that there is very little evidence to

establish that complainant was directly harmed by the discriminatory

non-selection, as opposed to other alleged discriminatory acts which have

not been adjudicated. As regards the non-selection, which is the only

action of the agency relevant here, the evidence at best demonstrates that

complainant became upset and cried when she learned of her non-selection.

Indeed, the AJ noted in his decision that complainant had presented

�little evidence� bearing on causation; certainly none that can compare

with the evidence needed to sustain an award of $50,000.

Based upon the foregoing, the Commission finds that the evidence

submitted by complainant, as previously discussed, does not support

an award of compensatory damages greater than $2,000. See Sanchez

v. United States Postal Service, EEOC Appeal No. 01975022 (October 28,

1999) ($1,500 non-pecuniary damages based on complainant's testimony

regarding stress at work and at home and loss of enjoyment of life);

Mozell v. Department of the Interior, EEOC Appeal No. 01981521 (August

12, 1999) ($1,000 non-pecuniary damages where evidence was non-specific

regarding nature and duration of harm); Vereb v. Department of Justice,

EEOC Appeal No. 01990136 (June 11, 1999) ($1,000 non-pecuniary damages

where evidence relating injury to finding of discrimination was limited);

Turner v. Department of Agriculture, EEOC Appeal No. 01964759 (September

25, 1998) ($2,000 non-pecuniary damages for lay testimony of emotional

distress with physical manifestations). This amount is adequate to

compensate complainant for the harm shown to be causally related to

the discriminatory conduct. Further, the amount of the award meets the

goals of not being �monstrously excessive� standing alone, not being the

product of passion or prejudice, and being consistent with the amount

awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827,

848 (7th Cir. 1989); US EEOC v. AIC Security Investigations, Ltd.,

823 F.Supp. 573, 574 (N.D. Ill. 1993); Wallis, EEOC Appeal No. 01950510.

Attorney's Fees and Costs

An agency must award attorney's fees, in accordance with existing

case law and regulatory standards, for the successful processing

of an EEO complaint. 29 C.F.R. �1614.501(e). The fee awarded is

normally determined by multiplying the number of hours reasonably

expended on the case by a reasonable hourly rate. Blum v. Stenson,

465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983); 29

C.F.R. �1614.501(e)(2)(ii)(B). The attorney requesting the fee award

has the burden of proving, by specific evidence, his or her entitlement

to the requested amount of attorney's fees and costs in the matter.

Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1983). Given that

there has been a finding of reprisal discrimination in connection with

the contested non-selection, and that complainant has been awarded relief

including, inter alia, back pay and compensatory damages, complainant

is entitled to an award of attorney's fees.

A complainant seeking an award of attorney's fees must submit

to the agency a verified statement of costs and fees with an

accompanying affidavit itemizing the charges for legal services.

29 C.F.R. �1614.501(e)(2)(i). A fee petition must �contain sufficiently

detailed information regarding the hours logged and the work performed�

to permit the determination of the correct award. National Association

of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327

(D.C. Cir. 1982). �Casual after-the-fact estimates of time expended on

a case are insufficient to support an award of attorney's fees.� Id.

Generally speaking, statutory attorney's fees may be recovered only for

services rendered after the complainant has notified the agency that he

or she is represented by an attorney and has filed his or her formal

complaint in the matter. 29 C.F.R. �1614.501(e)(1)(iv); Management

Directive (MD) 110, Ch. 11, � II(B). The Commission has held that

attorney's fees are not awardable for services rendered between the

time of notice and the time the complaint is filed. McKeel v. Dept. of

Energy, EEOC Appeal No. 01893703 (December 12, 1989). However, fees may

be paid for time expended by counsel to determine whether to represent

the complainant on the complaint. Stauner v. Dept. of Agriculture,

EEOC Appeal No. 01890678 (April 13, 1989). The Commission has found

that, generally, an attorney may reasonably expend up to two hours for

such determination. Id. In addition, while there is no cap on the

amount of attorney fees payable for litigation of the fee petition,

the amount requested must be �reasonable.� Black v. Dept. of the Army,

EEOC Request No. 05960390 (December 9, 1998).

In the instant case, complainant's attorney requested $56,964.73 in

attorney's fees and costs, including $7500 for post-hearing services.<6>

Noting that no verified fee petition had been submitted for the $7500, the

AJ deducted that amount, and without further comment awarded $49,464.73,

the entire balance of fees and costs requested.<7> The agency objects to

the requested fees and costs as being unsupported by the fee petition.

Upon review of the record, the Commission agrees that the attorney's

fees and costs awarded by the AJ grossly exceed what is supported by

the fee petition, and modifies the award as set forth below.

Turning now to the fee petition submitted by complainant's attorney

(Attorney BC), the Commission finds that, among other defects, the

fee petition in large part fails to identify with any specificity who

performed the particular services for which the fees are claimed (i.e.,

the attorney, an associate, or a legal assistant); fails to identify with

any specificity in furtherance of which of complainant's two complaint's

the services were performed; claims fees in connection with complainant's

first complaint, which was withdrawn and did not result in a finding of

discrimination; claims fees for services clearly identified as having

been performed solely in connection with the claim of age discrimination;

and fails to document costs with any specificity, either as to when or

in furtherance of which complaint the costs were incurred. It is not the

burden of the Commission to divine the appropriate fees and costs payable

in a given case. Rather, it is the burden of the attorney requesting

the fees and costs to provide adequate information to establish that he

or she is entitled to such payment, and the fee award may be reduced in

the absence of such information. MD-110, Ch. 11, � VII(A).

Regarding the rates charged, the Commission accepts that rates of $225 per

hour for Attorney BC, $175 per hour for an Associate Attorney, and $60 per

hour for a Legal Assistant are reasonable for an established practitioner

in Houston, Texas, as substantiated by the affidavit of a disinterested

Houston attorney submitted as part of the verified fee petition.

The specific reductions taken by the Commission are as follows:

Complainant's second, and successful, complaint<8> was not filed until

February 6, 1998, and the notice of representation in that complaint was

not filed until August 25, 1998. The filing of a formal complaint and

notice of representation generally are prerequisite to the payment of

attorney's fees. 29 C.F.R. �1614.501(e)(1)(iv); Management Directive

(MD) 110, Ch. 11, � II(B); but see note 6, supra. Accordingly,

all fees claimed prior to August 25, 1998 are disallowed, except that

the Commission will allow two hours for Attorney BC to have reviewed

complainant's claim in the second complaint and have determined to

undertake representation. See Stauner v. Department of Agriculture,

EEOC Appeal No. 01890678 (April 13, 1989). The billing statement for

the period November 15, 1997 through April 30, 1998 claims a total of

$9,860.69 in fees and costs, all of which is disallowed, leaving no

amount payable.

The billing statement for the period June 4, 1998 through September

28, 1998 claims a total of $3,215.30 in fees and costs. However,

the statement does not specify by whom each billed service was

performed, nor does it provide any detail regarding to which complaint

the service pertained. Some of the services clearly pertained to

the first complaint, which had already been set for hearing (e.g.,

�Reviewed discovery regulations in CFR�). Further, a total of 5.2

hours was billed on this statement for services performed prior to

filing the notice of representation in the second complaint. In view

of the foregoing, the Commission will award a total of two hours for

the determination to represent complainant in the second complaint, and

will award one-half hour clearly attributable to the second complaint

(�Prepared correspondence to EEOC. Completed form for Designation of

Representative.�), at the hourly rate charged by Attorney BC, for an

amount payable of $562.50. The Commission here notes that the verified

fee petition contains no substantiation of costs incurred (e.g., receipts,

a breakdown of which costs pertain to which complaint or any indication

of the date on which the costs were incurred), and so none of the costs

claimed in this case will be awarded. See MD-110, Ch.11, � V(D).

The billing statement for the period October 5, 1998 through January 29,

1999, claims a total of $9,676.50 in fees. No differentiation is made

regarding to which complaint the services pertained or who performed

the service. However, given that litigation of the second complaint

was underway at this point, rather than disallowing the entire amount

of fees claimed the Commission instead will reduce the amount claimed

by one-half, for an amount payable of $4,838.25.

The billing statement for the period February 1, 1999 through August 31,

1999 claims a total of $14,687.50 in fees. Again, the statement does

not differentiate complaints nor, until the final two entries, identify

by the whom the services were performed.<9> In view of the foregoing,

the Commission will reduce the amount claimed by one-half, for an amount

payable of $7,343.75.

The billing statement for the period September 1, 1999 through January

26, 2000 claims a total of $10,786.50 in fees. The record reflects that

during the September 1, 1999 pre-hearing conference, complainant expressed

her intent to withdraw her first complaint, and did withdraw the complaint

on September 2, 1999, the first day of the hearing. Accordingly, no

reduction is warranted for services performed in connection with the

first complaint. However, the amount claimed includes a total of 7

hours attorney time and 6 hours legal assistant time to �review file,

travel, attend trial� on September 6, 1999, a date on which no part of

the hearing occurred.<10> Attorney BC subsequently acknowledged that

this item was billed in error. Accordingly, a reduction of $1,935 is

warranted, leaving an amount payable of $8,851.50.

The billing statement for the period March 22, 2000 through June 20,

2000 claims a total of $343.50 in fees. These fees were incurred in

connection with complainant's second and successful complaint. Therefore,

no reduction is warranted, leaving an amount payable of $343.50.

The billing statement for the period July 1, 2000 through July 31,

2000 claims a total of $2,712.50 in fees. The billing statement for

the period August 2, 2000 through August 31, 2000 claims a total of

$2,557.50 in fees. The billing statement for the period September

5, 2000 through September 26, 2000 claims a total of $805 in fees.

These fees were incurred in connection with obtaining compensatory

damages and attorney's fees. No reduction is warranted, leaving an

amount payable of $6,075.

Based upon the foregoing, the Commission finds that Attorney BC is

entitled to attorney's fees in the amount of $28, 014.50. The relief

awarded by the AJ is MODIFIED as set forth in the Order of the Commission,

below.

ORDER (D0403)

The agency is ordered to take the following remedial action:

If it has not already done so, within thirty (30) days of the date on

which this decision becomes final, the agency shall place complainant in

the position of Intelligence Research Specialist, GS 0132-12, retroactive

to December 17, 1997. The record reflects that during the pendency

of these proceedings, complainant was promoted to a GS-13 position.

Should complainant wish to remain in her present position, the agency

nonetheless shall tender appropriate back pay and benefits.

The agency shall determine the appropriate amount of back pay, with

interest, and other benefits due complainant, pursuant to 29 C.F.R. �

1614.501, no later than sixty (60) calendar days after the date this

decision becomes final. The complainant shall cooperate in the agency's

efforts to compute the amount of back pay and benefits due, and shall

provide all relevant information requested by the agency. If there

is a dispute regarding the exact amount of back pay and/or benefits,

the agency shall issue a check to the complainant for the undisputed

amount within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The complainant may petition for

enforcement or clarification of the amount in dispute. The petition for

clarification or enforcement must be filed with the Compliance Officer,

at the address referenced in the statement entitled �Implementation of

the Commission's Decision.�

If it has not already done so, the agency shall post written notice

of the finding of discrimination as set forth in the below-entitled

paragraph, �Posting Order.�

If it has not already done so, within ninety (90) days of the date

on which this decision becomes final, the agency shall provide EEO

training, with emphasis on the provisions of the anti-discrimination

statutes prohibiting reprisal, to all agency personnel involved in

complainant's non-selection.<11>

The agency shall consider taking disciplinary action against the

agency officials identified as being responsible for the discriminatory

non-selection. The agency shall report its decision. If the agency

decides to take disciplinary action, it shall identify the action taken.

If the agency decides not to take disciplinary action, it shall set

forth the reason(s) for its decision not to impose discipline.

The agency shall tender to complainant $2000 in compensatory damages.

The agency shall tender to complainant attorney's fees in the amount

of $28,014.50.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled �Implementation of the Commission's

Decision.� The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its U.S. Customs Service, Houston,

Texas facility copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled �Implementation of the Commission's Decision,� within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

�Right to File a Civil Action.� 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. �Agency� or �department� means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to

file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above (�Right

to File a Civil Action�).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden

Director, Office of Federal Operations

October 30, 2003

__________________

Date

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of that person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions, or privileges of employment.

The Department of Homeland Security, U.S. Customs Service, supports

and will comply with such Federal law and will not take action against

individuals because they have exercised their rights under law.

The Department of Homeland Security, U.S. Customs Service, has

been found to have discriminated against the individual affected

by the Commission's finding. The Department of Homeland Security,

U.S. Customs Service, shall place the affected individual in the

position at issue, with back pay and benefits, and shall pay the

affected individual's proven compensatory damages and reasonable

attorney's fees. The Department of Homeland Security, U.S. Customs

Service, will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Department of Homeland Security, U.S. Customs Service, will not

in any manner restrain, interfere, coerce, or retaliate against any

individual who exercises his or her right to oppose practices made

unlawful by, or who participates in proceedings pursuant to, Federal

equal employment opportunity law.

_________________________

Date Posted: ____________________

Posting Expires: _________________

29 C.F.R. Part 1614

1At the time the events at issue arose, the U.S. Customs Service was

located within the Department of the Treasury. In the interim, it has

been relocated to the Department of Homeland Security.

2The text of the agency's final order included a statement of appeal.

The copy directed to the Commission was postmarked November 14, 2001,

the fortieth day after the agency's receipt of the Administrative

Judge's decision. The agency's appeal therefore was timely filed.

See 29 C.F.R. � 1614.110(a).

3The Commission notes that the agency's argument that complainant had been

barred from submitting evidence on compensatory damages as a sanction for

failure to cooperate in discovery is without merit. The barring order to

which the agency refers was issued in connection with the litigation of

a previous complaint, which was later withdrawn. Although at one point

in the proceedings the two complaints were consolidated, the barring

order was issued before the consolidation, and did not apply to the

instant complaint.

4The medical documents, a series of chart notes and test results, do

not contain any probative narrative information.

5Complainant did not claim pecuniary damages.

6The AJ had advised the parties that the agency should pay such fees and

costs for post-hearing services within 60 days of receipt of a verified

fee statement. The record reflects that fee information for this period

� July, August, and September 2000 � instead was submitted to the AJ

prior to issuance of his decision, but was not considered by him. It is

further noted that in August 2000 a second attorney entered a notice of

appearance as co-counsel solely in the matter of compensatory damages.

However, no verified fee petition has been submitted to claim fees for

this attorney.

7The AJ's decision on attorney's fees and costs reads, in its entirety:

The Complainant has requested $56,964.73 in legal fees and cost[s].

For various reasons the agency has requested that this amount be reduced.

Included in this request is [a request] for $7,500.00 for work on post

hearing matters. Since the Complainant has not submitted a verified

statement in support of the $7,500.00 this amount will be disallowed.

Therefore, I find that, as the prevailing party, [the] Complainant is

entitled to attorney's fees and costs in the amount of $49,464.73.

8It is noted that the two complaints had no factual circumstances or

questions of law in common. Complainant's first complaint alleged

harassment based on religion, while her second complaint alleged

non-selection based on age and reprisal.

9Further, a total of eight hours is identified as having been devoted to

research and preparation of a memorandum solely on the subject of age

discrimination. Complainant's age claim not only was not successfully

pursued, but by law attorney's fees are not payable in connection with

claims of age discrimination. See 29 C.F.R. � 1614.501(e); Taylor

v. Department of the Army, EEOC Request No. 05930633 (January 14, 1994).

10The hearing was held September 2, 3, and 17, 1999. It is noted that the

agency objected to the fees billed for attendance of Attorney BC's Legal

Assistant, TF, at the hearing. Given TF's substantial and continuing

involvement in this case, the Commission does not find it patently

unreasonable that she would attend the hearing to assist Attorney BC.

11The Commission notes that attendance at EEO training is not considered

to be a disciplinary action.